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Cyber Attacks Against Georgia:

Legal Lessons Identified


Eneken Tikk, Kadri Kaska, Kristel Rünnimeri,
Mari Kert, Anna-Maria Talihärm, Liis Vihul

NATO Unclassified
Version 1.0
November 2008
DISCLAIMER

This analysis document is a product of the CCD COE Legal Task Team1.

It is intended for educational purposes to promote public discussion


and to keep readers informed on topics of common interest.

The views, opinions, and/or findings and recommendations contained in this analysis
are those of the authors and should not be construed as an official position, policy, or
decision of NATO or its agencies.

All rights reserved.

This document may not be published, broadcast, rewritten or redistributed without prior
consent of the CCD COE Legal Task Team. Any misuse or unauthorized use of this
document and its contents will result in removal from the distribution list.

Point of Contact – Ms Eneken Tikk - eneken.tikk@mil.ee

1 The CCD COE Legal Task Team is a project team formed by the Director of COE on the basis of the CCD COE

Operation MOU, with the function of optimising implementation of the legal projects of the COE and providing legal
assistance to other projects and branches of the COE.
Georgian Cyber Attacks:
Legal Lessons Identified

Contents

I INTRODUCTORY REMARKS ........................................................................................................................ 3 


II FACTS OF THE CASE ................................................................................................................................... 4 
BACKGROUND AND CONTEXT OF CYBER ATTACKS AGAINST GEORGIA ..................................................................... 4 
GEORGIA AS AN INFORMATION SOCIETY .................................................................................................................. 5 
METHODS OF CYBER ATTACKS .................................................................................................................................. 7 
Defacement of Websites .................................................................................................................................... 7 
DoS and DDoS Attacks ..................................................................................................................................... 8 
Distribution of Instructions and Malicious Software .................................................................................. 9 
Other Types of Attack ..................................................................................................................................... 10 
ORIGIN OF THE ATTACKS ........................................................................................................................................ 12 
COUNTERMEASURES ............................................................................................................................................... 14 
EFFECTS OF THE ATTACKS ...................................................................................................................................... 15 
III LEGAL LESSONS IDENTIFIED FROM THE GEORGIAN CASE ............................................................ 18 
THE APPLICABLE LEGAL REGIME ........................................................................................................................... 18 
APPLICABILITY OF INTERNATIONAL HUMANITARIAN LAW .................................................................................... 18 
Rationale of questioning the applicability of LOAC .................................................................................. 18 
General prerequisites for the applicability of LOAC ................................................................................. 19 
APPLICABILITY OF NATIONAL AND INTERNATIONAL CRIMINAL LAW .................................................................... 23 
Rationale of questioning the applicability of criminal law ...................................................................... 23 
Georgian Criminal Law in the Field ............................................................................................................. 24 
APPLICABILITY OF ICT LEGAL FRAMEWORK .......................................................................................................... 25 
IV CONCLUSIONS ..........................................................................................................................................29 
ANNEX I: FACTS ABOUT SOUTH OSSETIA ................................................................................................ 32 
ANNEX II: ATTACKS ILLUSTRATED ...........................................................................................................34 
ANNEX III: CHRONOLOGY OF CYBER ATTACKS AGAINST GEORGIA ...................................................36 
ANNEX IV: ESTONIAN INFORMATION SOCIETY IN FACTS ....................................................................42 
ANNEX V: GEORGIAN INFORMATION SOCIETY IN FACTS .....................................................................43 
ANNEX VI: COMPARISON OF RECENT CYBER CONFLICTS ....................................................................44 

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I Introductory Remarks
Aim of the analysis. The purpose of this paper is to present a balanced and inclusive
outline of the facts about cyber attacks2 against Georgia that took place in August 2008,
and to indicate the legal implications of those incidents. In addition, this paper aspires to
compare these facts to the legal lessons identified from the Estonian case3 in order to
discern emerging trends of cyber incidents and to identify their implications to the
current legal framework.

Sources of information. The facts of the Georgian cyber attacks have been collected
from the Estonian Computer Emergency Response Team (CERT-EE) and distinguished
IT security websites4, verified with the Georgian Embassy in Estonia, and compared with
international media5. The majority of the materials referred to in the facts section and all
materials referred to in the analysis part are open-source.

Target audience: Policymakers and researchers involved in the development of


national or international cyber security and cyber defence-related concepts and
initiatives; IT experts engaged in defensive measures against similar type of incidents;
wider public interested in recent developments in national cyber threat issues.

2 The term ’cyber attack’ is used throughout this paper as the term that has gained wide public use by both media and
the IT society. The term ‘attack’ is not to be confused with the term ‘armed attack’ within the meaning of international
humanitarian law, the relevance of which is discussed in more detail in Chapter III of this paper.
3 CCD COE Legal Task Team. ‘Case Study Estonia: Legal Lessons Learned from the April-May 2007 Cyber Attacks

against Estonia’ (draft). October 2008


4 Dr Jose Nazario, Arbor Networks; Steven Adair, Shadowserver Foundation; Gadi Evron, Beyond Security, ZDNet,

Circle ID; Dancho Danchev, Renesys; Jeff Carr, IntelFusion/Project Grey Goose.
5 Reuters, et al.

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II Facts of the Case

Background and Context of Cyber Attacks against Georgia


The conflict subject to the analysis falls within the timeframe and context of the broader
armed conflict that broke out in August 2008 between the Russian Federation and
Georgia over South Ossetia6, an autonomous and de jure demilitarized Georgian region
on the border of Georgia and Russia.

South Ossetia became de facto independent from Georgia during the 1991 Georgian-
Ossetian conflict; however, it remained commonly recognised by the international
community as an integral part of Georgia.7 Despite a declared ceasefire and numerous
peace efforts, the conflict has remained unresolved.

To maintain stability in the region after the 1991 conflict, a peacekeeping force was
formed in 1992 under an OSCE mandate of Russian, Georgian and South Ossetia’s
troops. The peacekeepers were subjected to the authority of a Russian commander. In
practice, these troops failed to cooperate, and tensions have gradually grown between
Georgia on one side and mostly Russian-supported separatists on the other.8

On August 7, 2008, following separatist provocations, Georgian forces launched a


surprise attack against the separatist forces. 9 On August 8, Russia responded to
Georgia’s act by military operations into Georgian territory, which the Georgian
authorities viewed as Russia’s military aggression against Georgia.10 By late August 7,
before the Russian invasion into Georgia commenced, cyber attacks were already being
launched against a large number of Georgian governmental websites11, making it among

6 See Annex I for a outline of information regarding the status of South Ossetia and the roots of the conflict.
7 The Russian Federation recognised South Ossetia’s independence on 26th August, 2008; the Russian example was
followed by Nicaragua a week later. See Statement by President of Russia Dmitry Medvedev on August 26, 2008.
Available at: kremlin.ru/eng/speeches/2008/08/26/1543_type82912_205752.shtml (last accessed 12 Nov 2008);
Nicaragua recognizes South Ossetia, Abkhazia. Reuters. 3 Sep 2008. Available at:
www.reuters.com/article/gc07/idUSN0330438620080903 (last accessed 12 Nov 2008)
8 Liik, K. ’Tee sõtta’. (In Estonian) International Centre for Defence Studies. 11 Aug 2008. Available at

www.icds.ee/index.php?id=73&type=98&L=0&tx_ttnews[tt_news]=262&tx_ttnews[backPid]=214&cHash=4de7396
400 (last accessed 25 Nov 2008). See also Council of Europe Parliamentary Assembly Resolution 1633 (2008) on ‘The
consequences of the war between Georgia and the Russian Federation’, available at
assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta08/ERES1633.htm (last accessed 20 Nov 2008)
9 Liik, K. Id.

10 Georgian Ministry of Foreign Affairs. Information for Press. 8 Aug 2008. Available at:
www.mfa.gov.ge/index.php?lang_id=ENG&sec_id=461&info_id=7193&date=2008-08-
08&new_month=08&new_year=2008 (last accessed 14 Nov 2008)
11 ‘Georgia, Russia: The Cyberwarfare Angle’, Stratfor Today, Aug 12, 2008, available at:
www.stratfor.com/analysis/georgia_russia_cyberwarfare_angle (last accessed: 18 Nov 2008).

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the first cases in which an international political and military conflict was accompanied
– or even preceded – by a coordinated cyber offensive. 12, 13

On the August 8, the President of Georgia, Mikheil Saakashvili, informed the


international community of having begun mobilisation, and on August 9, 2008, Georgia
imposed a “state of war” 14 , 15 . Even though this step foremost served as a national
measure in a situation where Georgia perceived a threat to national security and
sovereignty, this also set the framework applicable as Georgia dealt with the cyber
attacks and as such, is relevant to keep in mind when studying Georgia’s response to the
cyber attacks.

Georgia as an Information Society


Statistics about the Georgian ICT sector show that Georgia has 7 Internet users per 100
people (e.g. Estonia, the country that fell under similar type of attacks in 2007, has 57,
and Lithuania who came under coordinated cyber attacks in summer 200816, has 32).17
The relatively low number of Internet users in Georgia reflects the nation’s
infrastructural capacity and its lack of overall dependence on IT-based infrastructure.
However, the number of Internet users has been steadily growing – the Georgian
National Communications Commission (the Georgian regulatory authority in the

12 Although intense cyber attacks started taking place as the political conflict between Georgia and Russia escalated,
Georgia had also experienced cyber incidents prior to the land invasion: from July 19 to 20, 2008, the website of the
President of Georgia came under a persistent DDoS attack. See, e.g, Adair, S. ‘Georgian Attacks: Remember Estonia?’,
Shadowserver Foundation, Aug 13 2008, available at:
www.shadowserver.org/wiki/pmwiki.php?n=Calendar.20080813 (last accessed: 14 Aug 2008).
13 The roots of using cyberspace as an extension to the conflict on the ground date back into the first Chechen war in

1994, when the Chechen separatist movement was using Internet as a tool for delivering powerful pro-Chechen and
anti-Russian propaganda. During the second Chechen war in 1999-2000, Russian officials were accused of hacking
into Chechen websites and thus escalating the cyber conflict. Cyber attacks were also conducted simultaneously to the
Kosovo war in 1999, when NATO Internet infrastructure and U.S. and U.K computers became under attacks. Also, a
DDoS attack was conducted allegedly by pro-American hackers against Al Jazeera (an Arabic news channel) website
during the last Iraqi war. Since 2000, every now and then, as political tensions have risen between the parties of the
Middle East conflict, Israeli and Arab combatants have used cyberspace in order to pursue their political aims. See,
e.g., Kenneth Geers, ‘Cyberspace and the Changing Nature of Warfare’, Cooperative Cyber Defence Centre of
Excellence, 2008; see also Bruce Schneier ‘Cyberwar in Estonia’, 23 Aug 2007, available at:
www.schneier.com/blog/arch (last accessed 25 Nov 2008)
14 Press release of the President of Georgia. Declaration of Universal Mobilization by Georgian President Mikheil

Saakashvili. Aug 8, 2008, available at: www.president.gov.ge/?l=E&m=0&sm=1&st=0&id=2689 (last accessed: 25


Nov 2008)
15 [Elise Labott, E., Gotsadze, E.] Russian warplanes target Georgia. CNN, August 9, 2008. Available at:

edition.cnn.com/2008/WORLD/europe/08/09/georgia.ossetia/index.html?eref=rss_topstories (last accessed 25 Nov


2008). According to Georgian officials referenced in the article, the order was not a formal declaration of war and
stops short of declaring martial law; it did give the President powers that he would not have had in a peacetime
situation, such as issuing curfews, restricting the movement of people or limiting commercial activities.
By a decision of the Georgian Parliament, the state of war was lifted on September 3, 2008.
16 CCD COE Legal Task Team case study regarding the July 2008 cyber attacks against Lithuanian websites. Draft as

of November 2008.
17 Internet users per 100 population, 2006. Available at: data.un.org/Data.aspx?d=MDG&f=seriesRowID:605 (last

accessed: 25 Nov 2008)

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electronic communications sector) reported an 81% increase in the number of Internet
users in Georgia in 2006; much of that growth is based on the growing number of
broadband Internet users.18

Sources are varying on Georgia’s interconnection dependency on Russia. Considering


the geography of the region, Georgia has few options for Internet connectivity via land
routes, namely Turkey, Armenia, Azerbaijan, and Russia. According to some sources,
most of Georgia is, in terms of Internet infrastructure, dependent on Russia - more of
Georgia’s connections to the Internet pass through Russia than any other country,
comprising nearly half of Georgia’s thirteen links to the worldwide network.19 On the
other hand, there is strong indication also as regards interconnection with Turkey:
according to Renesys, most of Georgia’s 309 Internet prefixes get routed via Turkish or
Azerbaijan service providers; however, the latter is then routed on via Russia.20 As is
apparent, options for dispersing data traffic are relatively limited for Georgia, which
makes it a good target for coordinated cyber assault and isolation. In the Estonian cyber
attacks in April-May 2007, this concern was not nearly as acute, as there are (and were
at the time the attacks took place) a number of outbound high-capacity fibre optic data
links to several countries (Finland, Sweden, Latvia, Russia), owned by several
e-communications network operators; in addition, there were also binding agreements
in effect between larger e-communications infrastructure-owning operators, enabling to
divert excessive traffic to a particular ISP.21

As for perspectives for Georgia, building a direct high-capacity link from Georgia to
Western Europe is in progress: a fibre optic cable through the Black Sea (from the
coastal city of Poti, Georgia to Varna, Bulgaria) was nearly completely installed by the
time the August 2008 Russian-Georgian conflict commenced. 22 When set up, this
connection can be expected to remarkably enhance the country’s Internet
interconnectivity. It was anticipated that the system would be delivered in the autumn of
200823; there is currently no open-source information available as to the status of this
project after the conflict in August.

As of 2007, there are five companies operating in the Georgian Internet access and
services market; of them, Caucasus Network Tbilisi, the main commercial service

18 Georgia: Electronic Communications Market Turn Over Exceeds GEL 1 bln. Caucas Euronews, 08/06/2007.

Available at:
www.caucaz.com/home_eng/depeches.php?idp=1723&PHPSESSID=d7e84d535388fb8344927152099c6967 (last
accessed 25 Nov 2008)
19 ‘Georgia, Russia: The Cyberwarfare Angle’, Stratfor Today, Aug 12, 2008, available at:
www.stratfor.com/analysis/georgia_russia_cyberwarfare_angle (last accessed: 27 Aug 2008).
20 The relevant ISPs are TTnet (AS 9121; Turkey), Delta Telecom (AS 29049; Azerbaijan), and TransTelCom (AS

20485; , Russia) See Zmijewski, E. ‘Georgia Clings to the ‘Net’, Renesysblog, Aug 11, 2008, available at:
www.renesys.com/blog/2008/08/georgia_clings_to_the_net.shtml (last accessed: 27 Aug 2008).
21 CCD COE Legal Task Team, supra note 3.

22 Zmijewski, supra note 20

23 ‘Tyco to construct undersea fibre-optic system for Caucasus.’ Invest In Georgia Investment Agency. Available at:

www.investingeorgia.org/news/view/274 (last accessed 14 Nov 2008)

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provider, holds 90% of the market.24 United Telecom of Georgia, the incumbent operator
in the fixed line access market, also provides access to Internet service.25,26

More details about Georgia’s information society are presented in Annex IV.
For comparison, the same characteristics have been indicated for Estonia in Annex V.

Methods of Cyber Attacks


The methods of cyber attacks against Georgia primarily included defacement27 of public
websites and launch of Distributed Denial of Service (DDoS)28 attacks against numerous
targets – methods similar to those used in attacks against Estonia in 2007.
A chronological overview of the attacks can be found in Annex III to this paper.

Defacement of Websites

Defacements were directed at political/governmental and financial sites, including:

www.president.gov.ge website of Mikheil Saakashvili, the President of the Republic


of Georgia
www.nbg.gov.ge website of the National Bank of the Republic of Georgia
www.mfa.gov.ge website of the Ministry of Foreign Affairs of the Republic of
Georgia

According to data available, the website of President of Georgia, as well as the Georgian
Ministry of Foreign Affairs were defaced and replaced with a collage of photos of Mikheil
Saakashvili and Adolf Hitler.29 The website of the National Bank of Georgia was reported
to have been “defaced and replaced with a gallery of 20th century dictators”, President

24 Georgia: Electronic Communications Market Turn Over Exceeds GEL 1 bln. 8 Jun 2007. Available at:
www.caucaz.com/home_eng/depeches.php?idp=1723&PHPSESSID=d7e84d535388fb8344927152099c6967 (last
accessed 18 Nov 2008)
25 Hardabkhadze, V., Kvernadze, L. Georgia. (Part of a report produced for the European Commission on the
electronic communications markets in Central and Eastern Europe) Available at:
ec.europa.eu/information_society/activities/internationalrel/docs/pi_study_rus_ukr_arm_azerb_bel_geor_kaz_mo
ld/7_georgia.pdf (last accessed 20 Nov 2008). p. 8
26CERT-EE Report on status in Georgia, August 14, 2008. A public version of the report is available at the website of

the Estonian Informatics Centre at www.ria.ee/index.php?lang=en (last accessed 25 Nov 2008)


27 A website defacement is an attack on a website that changes the visual appearance of the site.

28 DDoS (Distributed Denial of Service) attack occurs when multiple compromised systems flood the bandwidth or

resources of a targeted system, usually one or more web servers. Methods for this vary: a DDoS attack can be carried
out by means of a Trojan or other kind of malware, or via a botnet.
29 See e.g. Dancho Danchev “Coordinated Russia vs Georgia cyber attack in progress,” Aug 11, 2008, available at:

blogs.zdnet.com/security/?p=1670 (last accessed: 18 Nov 2008); see also На сайте МИД Грузии появился коллаж с
Гитлером’ (in Russian), Lenta.Ru, available at: www.lenta.ru/news/2008/08/09/defaced/ (last accessed: 17 Nov
2008).

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Saakashvili among them.30 The only depiction of defacement that has been presented is
a collage of photos of Mikheil Saakashvili and Adolf Hitler; thus, it is not clear at this
point to the authors of this paper whether all three websites were defaced in the same
way or whether two different types of defacements were carried out.

CERT-EE reported of web sites of several Azerbaijan newspapers and media agencies
having been defaced (www.day.az, www.today.az, www.ans.az)31.

DoS and DDoS Attacks

According to the information received from CERT-EE and confirmed by the Georgian
Embassy in Tallinn, the Georgian websites attacked included examples from both public
and private sector.

Government sites:

www.abkhazia.gov.ge official website of the government of the Autonomous Republic of


Abkhazia
www.mes.gov.ge Ministry of Education and Science of the Republic of Georgia
www.naec.gov.ge governmental website providing standardised educational tests for
students
www.parliament.ge the Parliament of the Republic of Georgia
www.president.gov.ge the President of the Republic of Georgia

News and media sites:

www.forum.ge biggest forum in Georgia


www.civil.ge largest Georgian news page in English
www.presa.ge Association Press
www.apsny.ge a news portal
www.rustavi2.com a private television company
www.news.ge a news portal in English
interpress.ge a news portal

Financial institutions:

www.tbc.ge Georgia’s largest commercial bank

Other websites:

30 John Markoff quoting Gadi Evron, a well-known network security expert. See John Markoff “Before the gunfire,
cyberattacks,” International Herald Tribune, Aug 13, 2008, available at:
www.iht.com/articles/2008/08/13/technology/13cyber.php. (last accessed: 17 Nov 2008).
31 CERT-EE, supra note 26

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www.tbilisiweb.info News portal
www.newsgeorgia.ru News portal
www.os-inform.com privately owned media site
www.kasparov.ru Web page of Russian opposition party representative
www.hacking.ge Georgian hackers’ community website
www.skandaly.ru 32 Russian news portal

Attack statistics provided by Arbor Networks show high intensity attacks with data
traffic reaching 211.66 Mbps on average and 814.33 Mbps at the maximum. Regarding
duration, an average attack has lasted 2 hours 15 minutes, while the longest one lasted 6
hours.33

There seems to be a rather widespread consensus on that the attacks appeared


coordinated since their commencement.34 In this regard, the cyber events in Georgia
differ slightly from the incidents in Estonia, where coordination was recognized only in
the second phase of the cyber attacks.35 The issue of coordination is discussed in more
detail under subsection ‘Origins of the attacks’ of this paper.

Distribution of Instructions and Malicious Software

Several Russian blogs, forums, and websites spread a Microsoft Windows batch script
that was designed to attack Georgian websites. 36 According to Steven Adair of
Shadowserver, this script was posted on several websites and was also hosted on one site
as a compressed downloadable file which contained an executable “war.bat” file
within it.37 The same method was used in the emotional phase of cyber attacks against
Estonia, where a downloadable script to ping flood Estonian websites (both DNS and
IPs) was shared on various Russian language message boards.38

Instructions on how to ping flood Georgian government web sites were also distributed
on Russian language websites and message boards, as well as lists of Georgian sites
32 One will notice that not all of these are Georgian websites. However, it is interesting to see that the same groups
involved with targeting various Russian media outlets have also been taking aim at various Georgian websites.
Additionally, the website of Garry Kasparov has once again come under attack. See Adair, S. ‘Georgian Websites Under
Attack - DDoS and Defacement’, Shadowserver Foundation, Aug 11, 2008, available at:
www.shadowserver.org/wiki/pmwiki.php?n=Calendar.20080811 (last accessed: 27 Aug 2008)
33 Nazario, J., ‘Georgia DDoS Attacks - A Quick Summary of Observations’, Arbor Networks, Aug 12, 2008, available

at: asert.arbornetworks.com/2008/08/georgia-ddos-attacks-a-quick-summary-of-observations/> (last accessed: 14


Aug 2008).
34 See Danchev, supra note 29; ‘Georgia, Russia: The Cyberwarfare Angle’, Stratfor Today, Aug 13, 2008, available at:

www.stratfor.com/analysis/georgia_russia_cyberwarfare_angle (last accessed: 21 Aug 2008).


35 CCD COE Legal Task Team, supra note 3.

36 Adair, S. “Georgian Attacks: Remember Estonia?”, Shadowserver Foundation, Aug 13, 2008, available at:
http://www.shadowserver.org/wiki/pmwiki.php?n=Calendar.20080813 (last accessed: 25 Nov 2008).
37 Id. A redacted version of the script can be accessed at
www.shadowserver.org/wiki/pmwiki.php?n=Calendar.20080813 (last accessed 18 Nov 2008)
38 CCD COE Legal Task Team, supra note 3. Note that instructions for cyber attacking Estonian sites continue to be

available on the Internet even at the time of this analysis.

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vulnerable to remote SQL injections, facilitating automatic defacement of them.39 Again,
this was similar to the Estonian case, where instructions on carrying out cyber attacks
were spread almost exclusively on Russian language sites, regardless of whether those
sites were located in Estonia, Russian Federation, or elsewhere. It is relevant to mention
that in both Georgia and Estonia, Russian is a minority language, and in neither of those
two is it an official language.40

According to the analysis of the Swedish National Defence University41, and supporting
conclusions by Shadowserver, stopgeorgia.ru (also utilizing ‘stopgeorgia.info’ as a
redirect) provided DDoS attack tools for download and indicated a number of .ge web
sites as a priority for attack. The findings of an analysis by the Project Grey Goose42
confirm evidence of co-ordinated targeting and attacking of Georgian websites, and
point out that the same sites (stopgeorgia.ru/stopgeorgia.info) also provided the
necessary attack tools for the cyber assault against Georgia for hackers.43 In summary,
36 major web sites were identified as targets for hackers, among those the Embassies of
the US and UK in Tbilisi, the Parliament, Supreme Court, and Ministry of Foreign Affairs
of Georgia, several news and media resources, and numerous other sites. 44

Other Types of Attack

There were also signs of abuse of public lists of e-mail addresses of Georgian politicians
for spamming and targeted attacks. The list of e-mail addresses was originally created by
a lobbying organisation; during the attacks, it was circulated “in an attempt to convince
Russian hackers of the potential for abusing it in spamming attacks and targeted attacks
presumably serving malware through live exploit URLs”. 45

39 Danchev, supra note 29.


40 In Georgia, two of the major languages spoken include language Georgian (71%) and Russian (9%); in Estonia,
Estonian is the first language for 67.3% and Russian for 29.7% of the population.
See Georgia. CIA World Factbook (Updated as of 6 November 2008). Available at:
www.cia.gov/library/publications/the-world-factbook/geos/gg.html (Last accessed: 17 Nov 2008)
Estonia. CIA World Factbook (Updated as of 6 November 2008). Available at:
www.cia.gov/library/publications/the-world-factbook/geos/en.html (Last accessed: 17 Nov 2008)
41 E-mail from the Swedish Defence University with preliminary conclusions on ‘Cyberattack against Georgia’. August

2008
42 Project Grey Goose was a volunteer effort of IT experts, led by Jeff Carr of IntelFusion in cooperation with Palantir

Technologies, to understand the nature of recent cyber activities between Russia and Georgia. The Project undertook
an in-depth OSINT research into the communications regarding cyber attacks spread over Russian hacker sites in
August 2008; a report on the findings is available at www.scribd.com/doc/6967393/Project-Grey-Goose-Phase-I-
Report
43 Project Grey Goose. Phase I Report Russia/Georgia Cyber War – Findings and Analysis. 17 October 2008.

www.scribd.com/doc/6967393/Project-Grey-Goose-Phase-I-Report (last accessed 31 Oct 2008)


44 See a list of target sites in Annex II of this paper.

45 Danchev, supra note 29.

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The same method was used against Estonia, where comment and e-mail spam
comprised a remarkable load on both private and governmental web and e-mail
servers. 46 Considering that the law governing administrative procedure in Estonia
ensures the right of every person to conduct operations with the state via electronic
means 47 , crippling the habitual communication channels not only constituted an
inconvenience but also harmed the state’s ability to carry out its administrative functions
in accordance with applicable law.48

There is a reference to attempts to conduct a “cyber blockade” on Georgia by directing all


Georgian Internet traffic through Russia, but the reliability of the source reporting this is
not verified. 49 Apparently, trace route searches for the websites of the Georgian Ministry
of Foreign Affairs (mfa.gov.ge), Georgian Ministry of Defence (mod.gov.ge), and the
website of the Georgian President (president.gov.ge) were showing blocked access via
TTNet (Turkey) upon inquiries from both the USA and Ukraine.50 Still, a similar detail
was also reported by Dancho Danchev (ZDNet), who noted that cyber attacks expanded
to Turkey and the Ukraine, where many of the servers which route traffic to Georgia
were commandeered, possibly by the Russian Business Network (RBN) 51.52

46 CCD COE Legal Task Team, supra note 3.


47Administrative Procedure Act, RT (Estonian State Gazette) I 2001, 58, 354; 2007, 24, 127. An English translation is
available at
www.legaltext.ee/et/andmebaas/paraframe.asp?loc=text&lk=et&sk=en&dok=X40071K3.htm&query=haldusmenetlus
e&tyyp=X&ptyyp=RT&pg=1&fr=no (last accessed 18 Nov 2008); see Articles 5(6), 25(1).
48 The DDoS attacks on the government websites and portals during the April-May 2008 cyber attacks in Estonia had
a similar effect. According to art 32 of the Estonian Public Information Act (RT I 2000, 92, 597; 2007, 68, 420;
English text available at
www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X40095K2&keel=en&pg=1&ptyyp=RT&tyyp=X&query=ava
liku+teabe), state and local government agencies are mandated to publish certain information on their websites that is
not published elsewhere. Also, numerous public registries only operate online.
49 Russian Invasion of Georgia/Russian Cyberwar on Georgia. 9 October, 2008. The report is accessible at

www.georgiaupdate.gov.ge. It must be noted that the report is anonymous and hosted by Georgia-friendly actors. The
conclusions of this report have thus not been relied on in this analysis. It provides a good overview of foreign media
review on Georgian cyber events in an annex.
50 Id.

51 Russian Business Network. A cybercrime organisation, specialising in phishing, malicious code, botnet command-

and-control (C&C), denial of service (DoS) attacks, and identity theft. Further information is available at:
www.verisign.com/security-intelligence-service/info-center/webcasts/archived/index.html (last accessed: 27 Aug
2008); B. Krebs, “Shadowy Russian Firm Seen as Conduit for Cybercrime”, Washington Post, Oct 13, 2007, available
at: www.washingtonpost.com/wp-dyn/content/article/2007/10/12/AR2007101202461_pf.html (last accessed: 27
Aug 2008).
52 E. Zuckerman, ‘Cyber Attacks: Misunderstanding Cyberwar in Georgia’, Postchronicle, Aug 17, 2008, available at:

www.postchronicle.com/news/technology/article_212165469.shtml (last accessed: 27 Aug 2008). See also E.


Zuckerman, ‘Misunderstanding Cyberwar’, Aug 18, 2008, available at:
www.worldchanging.com/archives/008381.html (last accessed: 27 Aug 2008).
See supra note 51 for references regarding RBN.

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Danchev reports of an example of attempts to isolate the Georgian Internet user
community and prevent their communication via usual channels: one of Georgia’s most
popular hacking forums was reported to have come under a permanent DDoS attack for
several days on behalf of Russian hackers, an effort which harmed the ability of the
Georgian hacker community to exchange information regarding ongoing cyber events. 53

Origin of the Attacks


As was the case with Estonia, there is no conclusive proof of who is behind the DDoS
attacks, even though finger pointing at Russia is prevalent by the media. There seems to
be a widespread consensus that the attacks appeared coordinated and instructed. 54,55

According to Arbor Networks data traffic analysis, major DDoS attacks observed were all
globally sourced, suggesting a botnet (or multiple botnets) behind them.56

According to the Shadowserver Foundation from the initial days of the Georgian cyber
incident, there were at least six different C&C57 servers involved in the attacks; some of
the botnets operated by them are either “DDoS for hire” or “DDoS for extortion” services
which otherwise apparently employ a regular pattern in attacking sites and rarely go
after a non-commercial site. 58 The HTTP-based botnet C&C server was reported to be a
MachBot controller and as such, a tool that is frequently used by Russian bot herders,
and the domain involved with this C&C server had, according to Steven Adair of the
Shadowserver Foundation, seemingly bogus registration information which, however,
ties back to Russia.59

There is some indication of the RBN involvement, which was also referred to earlier in
this paper (see ‘Other types of attack’ under ‘Methods of cyber attack’)60. The security
experts of Shadowserver presume that the involvement of RBN did not amount to more
than providing hosting services to the botnet C&Cs and it did not commit the DDoS
attacks itself.61

53 Danchev, supra note 29.


54 Danchev, supra note 29.
55 See, e.g., Project Grey Goose. Supra note 42, p 4.

56 According to Jose Nazario, the DDoS attacks were mostly TCP SYN floods with one TCP RST flood in the mix; no

ICMP or UDP floods were detected. See J. Nazario, ‘Georgia DDoS Attacks - A Quick Summary of Observations’, Arbor
Networks, 12 Aug 2008, available at: asert.arbornetworks.com/2008/08/georgia-ddos-attacks-a-quick-summary-of-
observations (last accessed: 14 Aug 2008).
57 Botnet command and control servers, commonly abbreviated by the IT society as C&C.

58 Johnson, M. ‘Georgian Websites Under Attack - Don’t Believe the Hype’, Shadowserver Foundation, Aug 12, 2008,

available at: www.shadowserver.org/wiki/pmwiki.php?n=Calendar.20080812 (last accessed: 27 Aug 2008).


59 Adair, supra note 12; G. Craciun, ‘President of Georgia Web Page Down after Hacker Attack - The Russians are

believed to be behind it’, Security News Editor, available at: news.softpedia.com/news/President-of-Georgia-Web-


Page-Down-after-Hacker-Attack-90420.shtml (last accessed: 27 Aug 2008).
60 Johnson, supra note 58. See supra note 51 for an explanation of RBN.

61 Id.

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The Project Grey Goose team reports of being unable to find, in their research into the
Russian hacker sites, any references to state organisations guiding or directing attacks,
be it because there was none, because the collection efforts were not far-reaching or deep
enough to identify these connections, or because involvement by state organisations was
conducted in a way to purposefully avoid attribution. 62 However, the report refers to
historical evidence that past and present members of the Russian government endorse
cyber warfare and/or cyber attacks initiated by their country’s hacker population.63

Also, as was the case with Estonia, there seems to be a wide public understanding that
the attacks were at least tolerated by the Russian authorities, if not coordinated or
supported by them. Supporting circumstantial evidence can be provided in both cases:

- Both conflicts have as their background a large-scale collision of interests between


the country under attack and Russian authorities;

- The coordination of and support to attacks took place mainly in the Russian
language and was conducted on Russian or Russia-friendly forums.

Sources indicate a connection between organised crime and the Georgian cyber incidents.
According to the above-referred study carried out by the Swedish National Defence
University, stopgeorgia.ru is related to different criminal activities, such as forged
passports and stolen credit cards, i.e. activities that normally should be prosecuted by
the authorities; however, the Russian authorities have remained remarkably passive in
prosecuting the person in this particular case.64 The Project Grey Goose report points out
that the stopgeorgia.ru site – which provided information and tools for independent
hackers to attack Georgian sites – was hosted by SoftLayer Technologies, Inc. (AS36351)
of Plano, Texas, USA, the latter being controlled by Atrivo, a host listed as the 4th
worldwide among webhosts capacitating spread of malware, spam, financial scam, and
identity theft.65,66

Dancho Danchev of ZDNet points out that “an average script kiddie” would not bother
nor understand the psyops effect of coming up with identical gestures of Saakashvili and
Hitler and integrating them within the defaced sites.67 It is obvious from some of the
attacks the amount of photos and the similarities of gestures presented that putting the
collage together demanded time, commitment and resources.

Based on their data collection and analysis, the Grey Goose Project analysts discern a
pattern in the Georgian attacks, comprising of 5 stages: spreading encouragement to get
62 Project Grey Goose, supra note 42, p 3
63 Id., pp 3, 6-8
64 Swedish National Defense University, supra note 41.

65 Armin, J. ‘Atrivo – Cyber Crime USA: White Paper - Atrivo and their Associates’. Vers: 1.1, September 2008.

Available at: hostexploit.com/downloads/Atrivo%20white%20paper%20090308ad.pdf (last accessed 19 Nov 2008)


66 SoftLayer Technologies - Does the Cyber War “Buck” Stop There?. Intelfusion. Available at:
intelfusion.net/wordpress/?p=452 (last accessed 19 Nov 2008)
67 Danchev, supra note 29.

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involved in the cyber war against Georgia, publishing a target list of Georgian
government Web sites which have been tested for access, selection of types of malware to
use against the target Web site, launching attack and optionally, result evaluation.68 The
conclusions leave little doubt that the Georgian cyber attacks were largely coordinated,
not simply an ad hoc reaction of individual cyber-activists sympathetic to the Russian
cause. This may constitute a new development compared to the incidents in Estonia,
where coordination was recognized only in the second phase of the cyber attacks.69

Countermeasures
According to Shadowserver, some of the attacked websites remained online and did not
really make any changes to defend themselves. A few of the websites temporarily
changed their IP addresses to loop back to the originating network70 in an attempt to
thwart the attacks. A few others also changed hosts.71

The interpress.ge news portal moved to Servage (www.servage.net), a worldwide hosting


platform provider. Civil.ge, a Georgian news portal, temporarily switched to publishing
their news coverage at a Blogger account (civilgeorgia.blogspot.com). Georgia’s Ministry
of Foreign Affairs also opened a Blogger account (georgiamfa.blogspot.com) for
distribution of information.

The websites of the Ministry of Defence and the President were relocated to Tulip
Systems, Inc., located in Atlanta, Georgia, the USA, and the website of the Ministry of
Foreign Affairs was moved to an Estonian server.72,73,74

The Office of the President of Poland provided their website (www.president.pl) for
dissemination of information and helped to get Internet access for Georgia’s government
after breakdowns of Georgian local servers caused by cyber attacks.75

Attack mitigation within Georgia was coordinated by CERT Georgia, who normally
provides computer and network security technical support to the Georgian higher

68 Project Grey Goose, supra note 42, p 5


69 CCD COE Legal Task Team, supra note 3.
70 This was done by changing the IP to 127.0.0.1 (localhost), which is the standard IP address used for a loopback

network connection (upon trying to connect to 127.0.0.1, one is looped back to one’s own host).
71 Adair, supra note 12.

72 CERT-EE, supra note 31.

73 Rand, E. Gruusia välisministeeriumi kodulehekülg paigutati Eesti serverisse (in Estonian). EPLOnline. August 12,

2008. Available at: www.arileht.ee/artikkel/438306 (last accessed 20 Nov 2008)


74 According to the information exchanged in a meeting at the Estonian Ministry of Foreign Affairs in September 2008,

the initiative of the Estonian Ministry of Foreign Affairs to host the Georgian Ministry of Foreign Affairs website could
not have happened, and certainly not in such a short timeframe (the site was reportedly moved within 24 hours),
without Estonia learning lessons from 2007.
75 ‘Cenne polskie wsparcie dla Gruzji’ (in Polish), RMF FM, 9 Aug, 2008, available at: www.rmf.fm/fakty/?id=141305

(last accessed: 27 Aug 2008). See also: ‘Information about the latest developments in Georgia’, President of the
Republic of Poland, available at: www.president.pl/x.node?id=479 (last accessed: 10 Aug 2008).

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education institutions (as a unit part of the Georgian Research and Educational
Networking Association, GRENA)76 and who assumed the role of national CERT during
the cyber attacks.77

CERT Poland analyzed IP data and sent out abuse messages, while CERT France helped
with collecting log files.78

From August 12 to 16, two information security specialists from CERT Estonia also
visited Georgia in order to assist the local CERT by providing their knowhow and
experience.79

Effects of the Attacks


CERT-EE has provided information on the two main players on the Georgian Internet
access and services market, United Telecom and Caucasus Network. United Telecom of
Georgia router (Cisco 7206 series) was unavailable and incapable of providing service for
several days.80 Caucasus Network Tbilisi was flooded with excessive queries; according
to data provided to the Estonian CERT by Caucasus Network, rerouting of traffic may
have affected the smaller Internet providers. 81 The problem was escalated by the fact
that the Caucasus Network infrastructure runs through the war activity zone, which also
caused physical disconnections.82

The unavailability of crucial websites of the Georgian government caused by the DoS and
DDoS attacks severed communication from the Georgian government in the early days
of the Georgian-Russian conflict – a period that was doubtless the most critical in the
events and where the Georgian government had a vital interest in keeping the
information flowing to both the international public and to its own residents. The
unavailability of the core state institutions’ websites can additionally be seen as serving a
discouraging effect on Georgian nationals.

Given the different context of the Georgian cyber event compared to the Estonian cyber
attacks in spring 2007, the damage is manifested in different categories as well. Whereas
in Estonia, the core of the damage consisted of obstructed access to socially vital

76 ‘CERT Georgia’. A description of mission and services is available at: www.grena.ge/eng/cert.html (last accessed 20
Nov 2008)
77 CERT-EE, supra note 26.

78 Id.

79 ‘Eesti aitab Gruusiat küberrünnete tõrjumisel’ (in Estonian), Estonian Informatics Centre, Aug 12, 2008, available

at: www.ria.ee/index.php (last accessed: 27 Aug 2008)


80 According to CERT-EE, CPU utilization at UTG was 100%, which made it almost impossible to get console access.

The cause seemed to be some sort of BGP upload activity. L3 switches on the way to the router were unaffected. See
supra note 26.
81 The Caucasus has a 1G backbone and an uplink (probably 3 x STM1) via Turkey and Azerbaijan. Caucasus was

reported to have been flooded with 150Mbit/s traffic, TCP SYN flood towards interpress.ge port 80. Id.
82 Danchev, supra note 29.

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electronic services provided by both the public and private sector, such as e-government
and e-banking services, in Georgia, the heart of the damage lied in limiting the nation’s
options to distribute their point of view about the ongoing military conflict– in “making
its voice heard” to the world. Simultaneously, Georgia’s own public was deprived of
information.

The cyber incidents also had a reflection on the provision of public services. As a
consequence of the attacks, on August 9, the National Bank of Georgia ordered all banks
to stop offering electronic services. On Monday, August 18, the National Bank reported
that all commercial banks in Georgia were back to operating business as usual83, which,
however, meant that electronic banking services were out of function for ten days.84

In Georgia’s case, the significance of service disruption is different compared to the


importance that the spring 2007 cyber attacks had in Estonia, as the scale of the two
countries’ information and communication technology (ICT) dependence is rather
different. As dependence on ICT for everyday services and communication correlates
with the level of harm that could be caused by the attacks, generally, countries with a
higher degree of ICT development are more exposed to cyber attacks and consequently
face greater damage, and the same is true in reversion. Regarding the Georgian case,
Josè Nazario (Arbor Networks) was quoted in media as not seeing devastating effects.85
However, even though the relatively low ICT dependence of Georgia limited the damages
caused by the cyber attacks on the service providers, Georgia also illustrates another
trend in the effect of cyber attacks: namely, countries whose ICT availability is low suffer
most in terms of efficiency of information flow.

The short-term and long-term effect of cyber attacks must also be kept in mind. While
the attacks did not have a permanent or even a long-run devastating effect on the
Georgian Internet infrastructure, the damage caused by the attacks was most acutely
experienced at the time when Georgia was the most dependent on the availability of their
information channels. This brings up another characteristic of cyber attacks: unlike the
effect of kinetic force, cyber attack can be designed in a way to cause only temporary
harm in a particular timeframe.

As is the case with Estonia, the amount of damage caused by cyber attacks is difficult to
estimate in monetary categories86 – even more so in the case of Georgia since the timing
of the cyber incidents coincided with physical damages caused by the ongoing armed
conflict. A conclusive estimation of damages of cyber attacks would require a systematic
83 ‘All commercial banks in Georgia are operating business as usual’, National Bank of Georgia, Aug 18, 2008,
available at: www.nbg.gov.ge/index.php?m=340&newsid=832 (last accessed: 18 Aug 2008).
84 Compared to Estonia, where online banking services were out of function for two hours, this is a lengthy period.

However, given the hight dependence on Estonians on e-banking (over 90% of all banking transactions are conducted
via electronic means), even this relatively short timeframe was already considered critical.
85 Arnoldy, B. Cyberspace: New Frontier in Conflicts. ABC News, 17 Aug 2008. Available at:
abcnews.go.com/Technology/AheadoftheCurve/Story?id=5590834&page=2 (last accessed: 25 Nov 2008)
86 Linnamäe, L. ‘Küberrünnakute kahjusid hakatakse arvutama hiljem’ (in Estonian). Postimees, May 5, 2007.

Available at: suusk24.postimees.ee/110507/esileht/majandus/259796.php (last accessed: 20 Nov 2008)

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and inclusive effort from all parties involved – government, private sector as well as the
users. In many cases, reluctance of the private sector to provide exact data on the kind
and size of the damages occurred may be predicted, as there are reasonable and genuine
concerns as to the negative effect of revealing such data both in terms of business
interest and security considerations; such data may also fall under the protection of
business confidentiality, which means that there is no legal obligation to the private
sector enterprises to provide data.

In summary, this means that while it is possible to describe the kinds of damages that
extensive cyber attacks like those witnessed in Georgia and Estonia may produce, it will
be unlikely that exact figures on damages will be available.

However, a discussion of the effects of cyber attacks would not be complete without also
taking note of the any benefits that arose from the Georgian cyber incidents, foremost to
Georgia, but also to the international community. In this context, international media
attention to Georgia, the international cooperation and assistance offered (see above
under the subdivision ‘Countermeasures’), and international awareness these events
have raised, has certainly been beneficial to both Georgia and the international
community.

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III Legal Lessons Identified from the Georgian Case

The Applicable Legal Regime


In order to determine the authorities’ capability to act, the extent of their involvement as
well as legal basis for international cooperation, it is necessary specify the legal
framework applicable to the cyber incident under question.

The categories of cyber incidents may range from simple deviations from internal
regulations and best practices to cyber terrorist acts and cyber warfare. These categories
may fall into different legal areas (IT regulatory framework, criminal law, law of armed
conflict) and thus are covered under various legal provisions in national and
international law.

As regards the Georgian cyber events, the potential applicability of law of armed conflicts
(LOAC)87 is analysed first. We will then focus on the applicability of criminal law and
possible legal support under ICT legal framework.

Applicability of International Humanitarian Law

Rationale of questioning the applicability of LOAC

Media has titled the cyber attacks against Georgia as “cyber war”88 and security experts
point out similarities of the Georgian incidents to the cyber events in Estonia in April
2007, a conflict that is frequently referred to as “Cyber War I” 89 . However, in
international public law, the term “war” carries a certain legal meaning, triggering a set
of rules for the conduct of the parties involved. Bearing in mind that neither a public
opinion nor a definition uttered by the media or a politician may not always coincide
with the legal categorisation, it is therefore appropriate to analyse whether the cyber
attacks against Georgia are subject to the application of LOAC.

It must be noted that LOAC is a term comprising two major sets of rules: jus ad bellum
that focuses on the criteria for going to war in the first place (covering issues such as
right purpose, duly constituted authority, last resort) and jus in bello that creates the

87 International humanitarian law (IHL) is also known as laws of war or law of armed conflict (LOAC). In this analysis
the terms are used interchangeably as synonyms.
88 E.g. Markoff, J. ‘Before the Gunfire, Cyberattacks’. New York Times, 13 Aug 2008. Available at:

www.nytimes.com/2008/08/13/technology/13cyber.html?_r=1&em (last accessed 20 Nov 2008); Swaine, J. Georgia:


Russia 'conducting cyber war'. Telegraph, 11 Aug 2008 Available at:
www.telegraph.co.uk/news/worldnews/europe/georgia/2539157/Georgia-Russia-conducting-cyber-war.html (last
accessed 20 Nov 2008)
89 M. Landler, J. Markoff, ‘In Estonia, what may be the first war in cyberspace’, The International Herald Tribune,

May 28, 2007, available at: www.iht.com/articles/2007/05/28/business/cyberwar.php (last accessed: 27 Aug 2008).

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concept of just war-fighting (covering non-combatant immunity, proportionality etc.).
Due to the level of abstraction of this paper the term LOAC is used without referring to
neither of them in particular. Wherever only certain aspects of LOAC are referred to,
they are pointed out.

General prerequisites for the applicability of LOAC

In order for LOAC to apply to a particular armed conflict, neither formal declaration of
war, nor recognition of a state of war is required. Instead, the requirements of LOAC
become applicable “as from the actual opening of hostilities” (ex nunc). 90 An
international armed conflict is perceived as “[a]ny difference arising between two
States91 and leading to the intervention of armed forces… even if one of the Parties
denies the existence of a state of war”.92 The de facto situation between Georgia and
Russia in August 2008 involved armed forces in operation in a cross-border conflict,
beyond the area where the peacekeeping mandate was applicable. Thus, even though the
Georgian declaration of a “state of war” (referred to in section ‘Background and
Context…’ of this paper) was an internal measure rather than one based on international
law, and regardless of the claims of Russia that it only entered the territory of Georgia in
order to “defend the lives and dignity of its citizens” in South Ossetia and Georgia,
describing its intervention as a peacekeeping operation 93, the applicability of LOAC to
the Russian-Georgian conflict raises few doubt.94

90 The authoritative Commentary of the International Committee of the Red Cross on the 1949 Geneva Conventions

states that ”[t]here is no longer any need for a formal declaration or war, or for recognition of the state of war, as
preliminaries to the application of the Convention. The Convention becomes applicable as from the actual opening of
hostilities.” See J. Pictet (ed.), Commentary on the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32.
91 Nevertheless, after the terrorist attacks of 11 September 2001 in the United States, the international community has

acknowledged the changes regarding parties in armed conflict. The terrorist attacks against the United States were
conducted by the terrorist network al-Qaeda led by Osama bin Laden and were considered armed attacks both by the
UN and NATO. In addition, US president George W. Bush also held the Taliban regime of Afghanistan responsible for
the attacks because it allowed al-Qaeda to operate on Afghanistan territory. After the attacks on the World Trade
Center in New York, US President started his War on Terror which was first demonstrated by the invasion into
Afghanistan by the troops of the USA and several of its allies. Hence, the attacks of 11 September 2001 expanded the
traditional definition of armed conflict, e.g. armed conflict does not necessarily have to arise between two States but
instead one of the parties can be, for example, a private group supported by a state. In this case, the question of state
attribution and state responsibility arises.
92 Pictet, supra note 90.

93 Statement of the President of Russia on August 8, 2008. Medvedev, D. ‘Statement on the Situation in South Ossetia’,

August 8, 2008 available at: www.kremlin.ru/eng/speeches/2008/08/08/1553_type82912type82913_205032.shtml


(last accessed 02 Sept 2008) In his statement, the President relied on the Constitution of the Russian Federation to
justify the interference in Georgia, as Article 80 (2) of the Constitution stipulates ”The President of the Russian
Federation shall be guarantor of the Constitution of the Russian Federation, of the rights and freedoms of man and
citizen. According to the rules fixed by the Constitution of the Russian Federation, he shall adopt measures to protect
the sovereignty of the Russian Federation, its independence and state integrity, ensure coordinated functioning and
interaction of all the bodies of state power.”, See The Constitution of The Russian Federation, available at:
www.constitution.ru/en/10003000-01.htm (last accessed 27 Aug 2008).
94 This position is shared by e.g. Human Rights Watch (’Q & A: Violence in South Ossetia’. Human Rights Watch. 15 Aug 2008.

Available at: www.hrw.org/en/news/2008/08/15/q-violence-south-ossetia, last accessed 20 Nov 2008); Council of


Europe Parliamentary Assembly Resolution 1633 (2008) on ‘The consequences of the war between Georgia and the

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This does not, however, automatically mean that LOAC would also be applicable to the
cyber attacks that took place simultaneously with the physical attacks potentially to be
regarded as armed conflict. Both the notions of “cyber war” and “cyber attacks” must be
assessed in legal terms; it must be examined whether the cyber incidents in Georgia
satisfy the criteria of an “armed attack” that triggers the applicability of jus in bello.

As stated above, the involvement of armed forces in the conflict is an important


prerequisite for the applicability of LOAC. As regards cyber incidents, many countries
have not created a specific “cyber force” in their military command, a fact that makes
such a connection practically impossible. With reference to Schmitt95, the engagement of
armed forces cannot be the sole decisive criterion. Schmitt explains: At the time when
the [LOAC] instruments were drafted, armed forces were the entities that conducted
[armed attacks].96

According to Schmitt, the most important detail is the nature and, more importantly, the
effect of the conduct under question. Based on the reasoning established for defining
traditional armed conflicts, an action can be defined as an ‘armed attack’, thus triggering
the applicability of LOAC, if that action is either intended to cause injury, death, damage
or destruction, or such consequences are foreseeable. 97 According to Solce 98 , cyber
terrorism and cyber warfare would constitute cyber attacks in the context of LOAC.

To make use of Solce’s argument, it is necessary to next examine whether the incidents
in Georgia meet the criteria listed above. When evaluating the consequences of computer
attacks, both the physical and mental sides must be taken into account. Economic harm
and loss of tangible property can be considered as damage and destruction; significant
human physical and mental suffering is logically included in the concept of injury.99
Mere inconvenience, harassment or diminishment in the quality of life does not reach
the level of injury or damage. It is a matter of estimating the level of human suffering to
decide whether a certain cyber incident would constitute an attack within the definition
of an attack in terms of humanitarian law.100

With reference to subsection ‘Effects of the attacks’ in this analysis, the direct effect of
the cyber attacks is difficult to estimate. Whereas negative implications on access to

Russian Federation’, available at assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta08/ERES1633.htm


(last accessed 20 Nov 2008)
95 Schmitt, Michael N. Wired Warfare: Computer Network Attack and jus in bello, IRRC June 2002, Vol. 84, No. 846,

page 372 ff.


96 Id.

97 See, e.g. Schmitt, supra note 95.

98 Solce, N. ’The Battlefield of Cyberspace: the Inevitable New Military Branch – the Cyber Force’. In: 18 ALB. L.J. Sci.

& Tech. 293 2008,


99 Schmitt states that is it reasonable to include human suffering in the connotation since the Protocol prohibits

causing terror, which is also a psychological condition. Art. 51 (2) Additional Protocol I to the Geneva Convention,
1997. Schmitt, supra note 95.
100 Id.

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information and information society services are evident, the extent of monetary loss
and human suffering is difficult to calculate.

Although in the Estonian case, where conviction followed under provision 207.2101 of the
Penal code, assuming “major damage”102, it must be noted again that in spite of the
terminology, the findings of the court only support the criteria of damage set under
criminal law pertaining to computer crime.

It is difficult to determine that the cyber incidents in Georgia constitute a breach of what
can be regarded as state’s international duty. In order to hold a state responsible for
cyber attacks under LOAC, it must also be established that the cyber attacks can be
directly connected with a particular state (state attribution).

The governing principle of state responsibility under international law has been that the
conduct of private actors – both entities and persons – is not attributable to the state,
unless the state has directly and explicitly delegated a part of its tasks and functions to a
private entity.103 A shift in this rigid paradigm can be observed in the developments of
recent years: e.g. the International Criminal Tribunal for the former Yugoslavia in the
Tadic case 104 and further by the international community in relation to the U.S.
Operation Enduring Freedom in 2001.105 However, the current view for attribution still
requires some form of overall control by the state.

101 § 207 (2) of Estonian Penal Code stipulates that unlawful interference or hindrance of the operation of a computer

system by way of entry, transmission, deletion, damaging, alteration or blocking of data is punishable by a pecuniary
punishment or up to 5 years’ imprisonment if significant damage is thereby caused or the operation of a computer
system of a vital sector (critical infrastructure) or the provision of public services is thereby hindered.
102 According to Implementation Act of the Estonian Penal Code (§ 8), in the legal assessment of offences pursuant to

the provisions of the Penal Code or another Act which prescribes the causing of damage as a constituent element,
proprietary damage shall be assessed as follows: 1) damage exceeding ten times the established minimum monthly
wage is significant damage; 2) damage exceeding one hundred times the established minimum monthly wage is major
damage (In 2008, the minimum monthly wage in Estonia is 4350 kroons = 278 €).
103 In the Nicaragua case, the International Court of Justice (ICJ) noted that the state may be held responsible for the

conduct of private actors only if it executed effective control over such actors. Hence, the ICJ could not hold the
United States responsible for the conduct of the contra rebels, because the United States did not exercise effective
control over the contras. The Court also noted that, in order for the conduct of private actors to give rise to legal
responsibility of the state, it would have to be proved that the state indeed had effective control over the conduct of
private actors. See Military and Paramilitary Activities in and against Nicaragua – ICJ Reports, 1986; Jinks, D.
‘State Responsibility for the Acts of Private Armed Groups’, Chicago Journal of International Law, 4 (2003), 83-95, p.
88.
104 In comparison with the Nicaragua case and the ICJ rule, the ICTY in the Tadic case lowered the threshold for

imputing private acts to states and concluded that states only need to exercise overall control over private actors in
order to attribute to the state any unlawful acts of the actors. The ICTY in its reasoning held that the ‘effective control’
criterion of the ICJ was contrary to the very logic of state responsibility and that it was inconsistent with state and
judicial practice. See Prosecutor v. Tadic - ICTY Case No. IT-94-1, 1999.; Jinks, p. 88-89.
105 Compared to the Tadic case, the U.S. Operation Enduring Freedom in turn lowered the threshold for attribution

because the U.S. sought to impute al Qaeda’s conduct to Afghanistan simply because its official regime Taliban had
harboured and supported the terrorist group (irrespective of whether Afghanistan exercised effective or overall
control). The international community among with several important international organisations endorsed the U.S
approach and determined that under international instruments the attacks of September 11 constituted armed attacks
which triggered the U.S inherent right of self-defence. The U.N, NATO and the OAS also attributed the terrorist
attacks of al Qaeda to the Taliban regime. See Jinks, supra note 103, p. 85-87.

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The law of state responsibility is based on the concept of agency. Hence, in determining
whether responsibility can be attributed to a state, the key questions are (a) whether a
person has acted as an agent of a particular state and (b) whether his actions qualify as
actions of that state.106 Contrary to what is the case when a state is directly exercising its
public functions, it is hardly possible to demonstrate that a state is responsible for the
acts of private parties.107 In those cases, the state does not bear direct responsibility for
private acts, but can instead bear indirect responsibility, meaning that the state can be
held responsible for tolerating the private action in question or for being incapable of
preventing it.108

The rules governing state responsibility were codified in 2001 into the Draft Articles on
Responsibility of States for Internationally Wrongful Acts,109 which can be considered as
a reflection of customary international law – the latter being binding upon all states.110
According to article 12 of the Draft Articles, a breach (that entails liability under
international law) occurs when an act of a state does not conform to what is required of
that state by the particular obligation under international law, regardless of the origin or
character of said act. What is considered an internationally wrongful act is determined
by international law.111

There is currently no universal legally binding instrument that would address cyber
attacks as threats to national security. 112 Even though some states have adopted non-
binding instruments at organisational level, these documents can be viewed as general
guidelines with limited applicability and without any foreseen sanctions in the case
where states do not adhere with the set out principles.113

106 Under international law, the conduct of formal state organs and their officials is usually attributable to the state (as
they have been authorised by the state to exercise public functions) and therefore it is considered that the state itself
has committed that act. Whereas the conduct of private actors, both entities and persons is attributable to the state,
when it is sufficiently connected with the exercise of public functions. Id.
107 Because the state is responsible for its wrongdoings and regards to private breaches, the state has the duty to

prevent or abstain from supporting private perpetrators. Id.


108 This is the case in state-on-state situations, e.g. the private actors are still responsible before the state for breaching

their obligations arising from national legislation.


109 Draft as on 15 September 2008.

110 General Assembly Resolution 58/63, 28.01.2002, Annex (Draft Articles). See René Värk ‘State Responsibility for

Private Armed Groups in the Context of Terrorism’, XI Juridica International, 2006, 184-193, p. 185.
111 Värk, supra note 110, p. 185.

112 The best known document that directly addresses threats arising from cyberspace and the Internet is the Council of

Europe Convention on Cyber Crime. Organisations such as the UN, NATO, OECD, and the EU have also adopted
instruments that focus on fight against cyber crime and terrorism as well as on the need for secure state information
systems and the need to protect critical (information) infrastructure.
113 Of course, this would not be the situation if a cyber attack would constitute an armed attack within the meaning of

Article 51 of the UN Charter. In this case, a state would be responsible for breaching its international duty deriving
from Article 2 (4) of the Charter which stipulates that “all members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the UN”. It should be noticed, that the violation of the UN Charter automatically
entails the violation of General Assembly Declaration on Principles of International Law Concerning Friendly
Relations and Co-Operation among States in Accordance with the Charter of the United Nations 1970 Article 1. See
D.J. Harris, Cases and Materials on International Law, 6th ed, London: Sweet & Maxwell, 2004, p. 1090, 1121.

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As previously discussed, in neither the Georgia 2008 case nor in the Estonia 2007 case
preceding it has it been possible to prove support by any certain state behind the cyber
attacks.

In conclusion, it is highly problematic to apply Law of Armed Conflict to the Georgian


cyber attacks – the objective facts of the case are too vague to meet the necessary criteria
of both state involvement and gravity of effect. Therefore, the potential remedies arising
from Geneva Conventions and IHL in general, as well as their usefulness, remain beyond
the scope of this analysis.

Applicability of National and International Criminal Law

Rationale of questioning the applicability of criminal law

As information technology has evolved, many countries have included provisions of


computer crimes in their criminal law to fight the disturbing trends of identity theft,
intrusion into networks and spread of viruses. In 2001, the Council of Europe adopted
the first international agreement in the field – the Cyber Crime Convention 114 that
contains both substantial and procedural aspects of investigating cyber crimes.
Therefore, it is relevant to consider the legal framework applicable in Georgia in terms of
criminal law.

Georgia signed the Council of Europe Convention on Cybercrime in April 2008 but has,
as of August 2008, not yet ratified the convention. Russia has neither acceded to nor
ratified the convention. Estonia had ratified the Convention already before the Estonian
cyber attacks took place, but the investigation of the incidents indicated some legal
loopholes so the law had to be revised.115

114 Convention on Cybercrime, Council of Europe, ETS 185, available at:


conventions.coe.int/Treaty/EN/Treaties/Html/185.htm (last accessed: 27 Aug 2008).
115 As a result of the revisions, the Penal Code regulation concerning computer related fraud with the liability of legal

person was amended. Another big amendment was related to the preparation of computer crimes. Currently, § 2161 of
the Penal Code foresees a liability for the preparation of computer crimes concerning data intervention, prevention of
computer system process, spreading of computer viruses, computer-related fraud, and illegal use of computer system.
Article 237 of the Penal Code was also amended in a way where a computer attack would become an act of terrorism
when it is committed with the same aims as a conventional act of terrorism. In comparison with the previous
regulation, the terms of sentences were also increased in some cases, for example for data intervention: earlier - fine or
up to one year of imprisonment, now – fine or up to three years of imprisonment.
The Parliament of Estonia passed the Act to Amend the Penal Code on 21 February 2008 and the amendments entered
into force on 24 March 2008. See Pikamäe, T. “Changes in Penal Code,” June 2008. Available at:
www.infolex.lt/portal/ml/start.asp?act=legupd&lang=eng&biulid=144 (last accessed: 25 Nov 2008); see also The
Baltic Times “Estonia Gets Tough on Cybercrime,” 17 Sept, 2007. Available at:
www.baltictimes.com/news/articles/18815/ (last accessed: 25 Nov 2008).

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Georgian Criminal Law in the Field

Since the Convention on Cybercrime has not entered into force for Georgia, investigation
of the incidents must be based on Georgia’s national material and procedural law. The
following analysis is not intended to cover all aspects of Georgian national law and only
highlights the key elements worthy of consideration in deciding on further action.

Under chapter 47 (“Computer Crime”) of Georgian Criminal Code 116 , unlawful


infiltration into the computer information (Art. 303), creating, applying and
disseminating a program damaging computers (Art. 304), and infringement of the rules
for exploiting computers, computer systems or their networks (Art. 305) is prohibited
and punishable. 117 Thereby, Georgian authorities are, in principle, in a position to
instigate criminal proceedings to investigate the cyber attacks that took place in August
2008.

In the Estonian case, a successful conviction derived from § 207 (2) of the Penal Code,
whereby unlawful interference or hindrance of the operation of a computer system by
way of entry, transmission, deletion, damaging, alteration or blocking of data is
punishable by a pecuniary punishment or up to 5 years’ imprisonment if significant
damage is thereby caused or the operation of a computer system of a vital sector (critical
infrastructure) or the provision of public services is thereby hindered.

Taking the assumption that the same deeds are punishable also in (at least some of) the
countries that the attacks originated from – which is the prerequisite for international
criminal cooperation with those countries – Georgia may lean on the provisions of
international criminal cooperation conventions of the Council of Europe. Nearly all of
the 47 Council of Europe member countries, including Georgia and Russia, have acceded
and ratified the European Convention on Mutual Assistance in Criminal Matters and
Additional Protocol to the European Convention on Mutual Assistance in Criminal
Matters.118

116 The CCD COE Legal Task Team received the text of Georgian Criminal Code from Academy of the Ministry of
Internal Affairs of Georgia via the OSCE Mission in Georgia; the authors of this paper cannot ensure that the
provisions of the Georgian Criminal Code cited in this paper are up-to-date.
117 According to the Georgian Criminal Code: Unlawful infiltration into the computer information, or the information

reflected in the computer network system, if this action destroyed, blocked, modified or copied the information, or
disrupted the work of computers, computer systems or networks, are punishable by a penalty to from 70 to 360 times
the daily salary or correctional work for a period of up to two years, or deprivation of liberty for the same period.
According to Art 303 (2), the same action committed by a group by a prior agreement, are punishable by a penalty
equal to 240 to 360 times the daily salary or correctional work for a period of up to five years, or imprisonment for a
period of up to four months, or deprivation of liberty for a period of up to five years. Under Article 304, creating a
program damaging computers or making changes in existing programs that intentionally cause unsanctioned
destruction, blockage, modification or copying of information, disruption of the work of computers, computer systems
or network, are punishable by a penalty equal to from 100 to 360 times the daily salary or correctional work for a
period of up to three years or deprivation of liberty for the same period.
118 European Convention on Mutual Assistance in Criminal Matters. Council of Europe. CETS No.: 030 available at:

conventions.coe.int/Treaty/EN/Treaties/Html/030.htm (last accessed: 02 Sep 2008);


Additional Protocol to the European Convention on Mutual Assistance in Criminal Matters. Council of Europe. CETS
No.: 099; .available at: conventions.coe.int/Treaty/EN/Treaties/Html/099.htm (last accessed: 02 Sep 2008)

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According to Article 1 of the Convention, the contracting parties undertake to afford each
other “the widest measure of mutual assistance in proceedings in respect of offences the
punishment of which, at the time of the request for assistance, falls within the
jurisdiction of the judicial authorities of the requesting Party”. According to Article 3.1,
the requested Party shall execute in the manner provided for by its law any letters
relating to a criminal matter and addressed to it by the judicial authorities of the
requesting Party for the purpose of procuring evidence or transmitting articles to be
produced in evidence, records or documents. Assistance may be refused, under Article 2,
only if the request concerns an offence which the requested Party considers a political or
fiscal offence or an offence connected with a political offence (as for Russia, it has made
a declaration to the convention defining the characteristics of crimes it may consider as
such), or if the requested Party considers that execution of the request is likely to
prejudice the sovereignty, security, ordre public or other essential interests of the
country. Any refusal for mutual assistance must be motivated. In accordance with Article
26, the Convention supersedes the provisions of any treaties, conventions or bilateral
agreements governing mutual assistance in criminal matters between any two
Contracting Parties.

However, as the legal lessons learned from the cyber attacks against Estonia in 2007
have demonstrated, even existing treaties on legal cooperation may be insufficient for
carrying out effective investigation. The efficiency of such treaties is very much tied to
the nations’ willingness to cooperate and, as is the case with public international law in
general, no effective mechanism for sanctions exists should a nation refuse to comply
with an international obligation.119

As regards national material law, one of the first steps that Georgia could consider taking
would be to ratify the Council of Europe Cyber Crime Convention, which at least ensures
basic international cooperation in the field of cybercrime. However, given the fact that
Russia, which is one of the nations of most interest to Georgia in the investigation of the
August 2008 cyber incidents, has not acceded to the Cybercrime Convention and has
announced its intent not to ratify the convention120, Georgia’s future ratification of the
Cybercrime Convention will not avail too much concerning the cyber attacks under study.

Applicability of ICT Legal Framework


The 2007 Estonian legal lessons learned indicate that one strength Estonia had in coping
with and recovering from the attacks, lies in a systematic and well-developed ICT legal
framework that sets the standards for IT security. As countries and their legal systems
are unique and a thorough analysis of Estonian law would be well beyond the scope of
this analysis, it will be useful to point out the basis for this regulation in European Union

119 Tikk, E., Kaska, K. Russian refusal for cooperation in criminal proceedings: analysis and proposals. April 2008. In

Estonian.
120 Putin defies Convention on Cybercrime. Computer Crime Research Center, March 28, 2008.

www.crime-research.org/news/28.03.2008/3277/

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(EU) countries. The reason for it is that more than any other international organisation,
the EU has developed an ambitious and regulated information society.

Georgia has, in recent years, put much effort into modernizing the country’s ICT
regulation and policy, by inter alia, developing an electronic communications legal
framework and draft legislation in the field of data protection, based on the key elements
of EU principles.121 Even though Georgia is neither an EU member state nor a candidate
country, the nation has expressed their aspiration towards integration to the European
Union and sees membership as a long-term goal.122 Furthermore, the EU and Georgia
have a bilateral Partnership and Cooperation Agreement (PCA) since 1999, and Georgia
is part of the European Neighbourhood Policy (ENP) program which sets ambitious
objectives for partnership with neighbouring countries based on commitments to shared
values, key foreign policy objectives and political, economic and institutional reforms,
including reforms in the information society segment. The latest ENP Action Plan,
endorsed by the EU-Georgia Cooperation Council of 14 November 2006, aims at
fulfilling the provisions of the PCA and involves a significant degree of economic
integration and political co-operation. As such, EU law in the field of information society
and electronic communications is highly relevant for Georgia.

There are several legal mechanisms in EU law that oblige both the state and private
actors to maintain a sufficient level of network and information security and could prove
to be an efficient example for Georgia in further developing the country’s IT legislation.

The electronic communications directives123 serve as cornerstones for ICT regulation in


the EU. Whereas their immediate influence on security of the networks is not evident,
they provide for a sustainable and balanced ICT infrastructure and facilitate provision of
electronic services in the market.

A general obligation for the service provider to take appropriate technical and
organisational measures to safeguard security of its services derives from article 4 of
ePrivacy Directive 2002/58/EC124.

121
Hardabkhadze, Kvernadze, supra note 25, pp 6-7.
122 European Union External Relations: Georgia. European Commission. Available at:
ec.europa.eu/external_relations/georgia/index_en.htm (last accessed 20 Nov 2008)
123 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory

framework for electronic communications networks and services (Framework Directive), OJ L 108, 24/04/2002 pp.
0033-0050; and four specific Directives: Directive 2002/20/EC of the European Parliament and of the Council of 7
March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive),
Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and
interconnection of, electronic communications networks and associated facilities (Access Directive), Directive
2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights
relating to electronic communications networks and services (Universal Service Directive), Directive 97/66/EC of the
European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the
protection of privacy in the telecommunications sector)
124 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of

personal data and the protection of privacy in the electronic communications sector (Directive on privacy and
electronic communications); OJ L 201, 31/07/2002 pp. 0037 – 0047

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According to the ePrivacy Directive, ensuring appropriate technical and organisational
measures to safeguard security of services is primarily the service provider’s
responsibility. If necessary (and with respect to the security of the network upon which
the service provider’s services are provided), the service provider must draw upon help
from the provider of the public communications network whom it is connected to. The
technical and organisational measures must accord to the regular risk level presented to
the services and network, however, in case of a particular risk of a breach of the security
of the network, the service provider is presented an elevated requirement to inform its
subscribers concerning the risk and any possible remedies if the service provider cannot
neutralise such risks itself.

Users and subscribers must also be informed, free of any extra charge, of measures they
can take to protect the security of their communications, for instance by using specific
types of software or encryption technologies.

Measures should be taken to prevent unauthorised access to communications in order to


protect the confidentiality of communications, including both the contents and any data
related to such communications, by means of public communications networks and
publicly available electronic communications services. In practice, national legislation in
some Member States only prohibits intentional unauthorised access to communications.

Another set of rules that serve as “legal security standard” are the personal data
protection principles set forth in the Personal Data Protection Directive 95/46/EC125.
This Directive provides for terms of exchange of personal data between public and
private authorities, potential claims of data subjects as well as the security measures to
be taken by data controllers. Proper implementation of these rules will create a clear
understanding of the terms of using data available about the incidents for purposes of
investigation and further prevention.

Also, implementing the EU Data Retention Directive 2006/24/EC 126 could facilitate
investigation of cyber attacks, as the core initiative of the directive is to mandate the
European Union member states to set up a national framework to require Internet
Service Providers (ISPs) and phone companies to keep data – for a period between six
months and two years – on every electronic message sent and phone call made. Even
though Georgia is neither an EU member state nor a candidate country, the nation has
expressed their aspiration towards integration to the European Union and sees
membership as a long-term goal.127 Thus, the European Union model for data retention
might be suitable for consideration for Georgia. Implementing measures stipulated in

125 OJ L 281, 23 Nov 95, pp. 31-39


126 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data
generated or processed in connection with the provision of publicly available electronic communications services or of
public communications networks and amending Directive 2002/58/EC. OJ L 105 , 13/04/2006 pp. 0054 – 0063,
available at: eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:105:0054:0063:EN:PDF (last accessed 27
Aug 2008).
127 European Union External Relations: Georgia. European Commission. Available at:
ec.europa.eu/external_relations/georgia/index_en.htm (last accessed 20 Nov 2008)

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the Data Retention directive would provide a legal basis to collect the data necessary for
investigation of cyber attacks. Of course, this would only be of help for any future
incidents.

There are more instruments that will support a solid legal framework in the field of IT
security – Directive 2000/31/EC on E-Commerce sets the standards for information
society service providers and

Apart from legal regulation it could be beneficial to become a member of the


International Organisation for Standardization (ISO). Georgia is currently a
correspondent member and does not yet have a fully-developed national standards
activity. 128 Although ISO membership does not involve legislative power, the
organisation provides instructions to strengthen information security and its
membership is an indicator of a certain level of IT security development.

The list of useful initiatives in the EU is much longer. We will therefore only conclude
that based on these instruments many countries have built a well-balanced and adapted
IT-regulation that for Estonia meant the ability of different authorities to quickly analyse,
coordinate and defend against the attacks.

128 ISO members, available at: www.iso.org/iso/about/iso_members.htm (last accessed: 27 Aug 2008)

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IV Conclusions
Effective response means to cyber attacks of scale and type like Georgia obviously are
quite limited under law. Most importantly they include the promotion of effective
international cooperation as there is no way for a country to coordinate defences against
attacks originating from other jurisdictions. It must be kept in mind, however, that
virtually no national or international entity has the authority to legislate in the field –
national efforts will have to work together with international instruments in different
fields and with different focus.

Based on the legal lessons identified and learned from recent public cyber attacks
(Estonia 2007, Lithuania 2008, Georgia 2008), it seems that a contemporary “Eastern
European” way of cyber-attacking a country is to use the “gray area” in law that does not
invoke LOAC. Mostly, the perpetrators operate in a domain that triggers application of
relevant provisions in criminal law, which is poorly developed in many countries and has
unsolid ground for cross-border cooperation.

It will take time to reach additional consensus on cyber defence legal aspects on
international level. Thus far, only 23 countries have ratified the Cyber Crime Convention
and only few have been in the position to truly test their national defences in terms of
law. Furthermore, the concerns and preparedness of countries in the field of cyber
security are different. The lack of experience and the perception of threat are the key
reasons why it takes additional time to develop international consensus on these matters.

From a legal point of view, given the current and projected future threat environment
(increasing threat of asymmetric attacks by non-state entities, less threat of state-
sponsored warfare), there is an increasing likelihood of “grey area” attacks. In fact, it is
the general murkiness of this grey area—the lack of clear policies and procedures, the
lack of direct evidence of the attacking entity’s identity—that may make such “grey area”
attacks even more attractive. In such a perceived environment, by deliberately remaining
below the threshold of “use of force,” an attacking entity may believe there is less
likelihood of reprisal even if the attacker’s identity is suspected.

Therefore, ratification of cyber crime convention even by all EU or NATO nations does
not solve the practical problems related to cyber attacks. Those countries that have
witnessed and experienced cyber attacks, have also recognized that there are significant
restrictions as regards the applicability and usefulness of cyber crime provisions to such
attacks – often the provisions are incomplete, the punishments are weak or the
investigatory powers are insufficient. Thus, the relevance of the Cyber Crime
Convention cannot be underestimated, but this instrument in its current wording and
background as well as status is not the ultimate answer to the problems related to cyber
incidents.

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As cyber attacks against nation states obviously become more frequent 129 , new
approaches to traditional LOAC principles need to be developed in order to provide
effective legal remedies under this area of law. Although the Geneva Convention does not
explicitly define armed conflicts as to include cyber attacks, the latest developments in
information warfare welcome such interpretation. Furthermore, the new bloodless types
of warfare make estimating the level of suffering difficult and the definition of an “attack”
should not be strictly connected with established meanings of death, injury, damage and
destruction. Instead the definition of an attack should be consequence-based and bear in
mind the final effect on the population.

As current LOAC legislation is hardly applicable to cyber attacks under question and
states often get tangled into applying international and national criminal law resulting
from the unwillingness of states to co-operate, the best way for international community
to protect their IT infrastructures, is through the development and enhancement of their
ICT legal framework.

To achieve this goal it is useful to rely on what is there in national and international law
that nations can use in order to achieve the goals of international130 and national cyber
defence strategies and policies. Therefore, it is important to determine which best
practices there are that individual nations, entities and organizations use and which have
helped them to prevent, detect or investigate cyber attacks. Based on these best practices,
a check-list for legally supported measures of cyber defence can be created. Such a
check-list would enable nations to conduct analysis of their national law and decide
which additional legal measures they need to take in order to provide effective defence in
event of a cyber attack. Countries that have the development of IT-based services as a
key priority for future progress should pay closer attention to legal protection
mechanisms concerning information security and possible cyber attacks.

At the same time, legal mechanisms need to be established for national and international
authorities’ involvement in a cyber incident. To avoid long reaction time and unclear
action lines, it must be analysed, what determines the relevance of a cyber incident for
particular authorities. This will provide input for nations as to what national procedure
they need to follow to determine this relevance and what entities are responsible for
analyzing and managing such incidents. Currently, a lot of confusion is created by the
fact that virtually all cyber attacks are referred to as ‘cyber war’ and ‘cyber terrorism’,
which in legal terms cannot be the case until a relevant legal framework is created under
national or international law. Not every deviation of everyday IT-security can be
regarded as a terrorist act or even a criminal act. In some cases, we deal only with
breaches of IT security legislation. That is not to say that there is no need for a legal basis
for categorizing a cyber attack as a terrorist attack. The Estonian lessons learned
included adding a relevant provision in the Penal Code.
129See annex VI for an overview of conflicts that have occurred in 2007-2008.
130Among the latest aspirations in the field of enhancing international cyber defence strategies and policies is the
NATO Policy on Cyber Defence. The policy was approved by NATO Nations in January 2008 and it sets forth the
principles for development of NATO’s cyber defence capabilities thus strengthening the key information systems of the
Alliance and its nations against cyber attacks.

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It must be recognized that contemporary cyber attacks do not occur in the domain of
LOAC. At the same time it cannot be concluded that they have no relevance for
international security and defence purposes. The stability or security of a nation can be
shaken by affecting (private) critical information infrastructures.

To be efficient in responses to cyber attacks of relevance, nations and international


organisations need additional expertise in the field to provide correct political
framework and legal coverage for cyber defence purposes.

The determining factor for the effect of cyber attacks against a country is not only the
scale of the country’s information and communication technology (ICT) dependence.
Dependence on ICT for everyday services and communication correlates with the level of
harm that could be caused by the attacks: generally countries with a higher degree of ICT
development are more exposed to cyber attacks and consequently face greater damage.
The Georgian case clearly shows that countries whose ICT availability is low, suffer most
in terms of efficiency of information flow.

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Annex I: Facts about South Ossetia131
GEOGRAPHY:

South Ossetia is a territory of about 4,000 sq km2 about 100 km north of the Georgian
capital Tbilisi, on the southern slopes of the Caucasus Mountains.

SEPARATISM:

The collapse of the Soviet Union spurred a separatist movement in South Ossetia, which
had always felt more affinity with Russia than with Georgia. It broke away from
Georgian rule in a war in 1991-92 in which several thousand people died, and maintains
close ties with the neighbouring Russian region of North Ossetia, on the north side of the
Caucasus. The majority of the roughly 70,000 people is ethnically distinct from
Georgians, and speak their own language, related to Farsi. They say they were forcibly
absorbed into Georgia under Soviet rule and now want to exercise their right to self-
determination. In 1991, South Ossetia claimed independence from Georgia but has never
been accepted as an independent state by international community and has thus
remained a de facto independent republic. The situation changed somewhat on the
26th of August, 2008 when Russia was the first UN member to de jure recognize the
independence of South Ossetia. On 3 September, 2008, the Russian example was
followed by Nicaragua; currently, these are the only two states that have recognized
South Ossetia as an independent state and not as an autonomous region of Georgia. The
separatist leader is Eduard Kokoity. In November 2006, villages inside South Ossetia
that are still under Georgian control elected a rival leader, ex-separatist Dmitry
Sanakoyev. He is endorsed by Tbilisi, but his authority only extends to a small part of the
region.

RUSSIAN SUPPORT:

Around two-thirds of annual budget revenues of approximately $30 million (15.5 million
pounds) come directly from Moscow. Almost all of the population hold Russian
passports; the Russian rouble as their currency. Russia’s state-controlled gas giant
Gazprom is building new gas pipelines and infrastructure, worth some 15 billion roubles
(324.5 million pounds), to supply the region from Russia.

CONFLICT:

A peacekeeping force with 500 members each from Russia, Georgia and North Ossetia
monitored the truce. Georgia has accused the Russian peacekeepers of siding with the
separatists, which Moscow has denied. Sporadic clashes between separatist and

Sources: Reuters uk.reuters.com/article/idUKL855785020080808?sp=true (last accessed: 27 Aug 2008); Facts


131

about South Ossetia, The Associated Press, August 8, 2008; South Ossetia at a Glance, International Herald Tribune
www.iht.com/articles/ap/2008/08/08/news/Georgia-South-Ossetia-Glance.php (last accessed: 12 Nov 2008)

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Georgian forces have killed dozens of people in the last few years. Georgian President
Mikheil Saakashvili has proposed a peace deal under which South Ossetia would be
given “a large degree of autonomy” within a federal state. The separatist leaders have
said they want full independence.

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Annex II: Attacks Illustrated
Defacement attack on the Georgia Ministry of Foreign Affairs website (evening of Aug 8,
2008): a collage of photos posted.132

An illustration of a simple HTTP flooder distributed for regular internet users for the
purpose of overloading Georgian websites with traffic.133

132Danchev, supra note 29.


133Illustration provided by D. Danchev, supra note 29. Danchev comments: “Following a basic cyber warfare rule, that
the masses are sometimes more powerful than the botnet master’s willingness to sacrifice hundreds and thousands of
his bots, the current campaign has also thought of the average Internet users who are encouraged to use a plain simple
HTTP flooder distributed for this purpose. The concept is nothing new; in fact, this is state of the art cyber warfare
combining all the success factors for total outsourcing of the bandwidth capacity and legal responsibility to the average
Internet user.”

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A screenshot from the Stopgeorgia.ru site on August 10, 2008. The table shows the
availability of different websites from Russia and Lithuania; the line over the table reads
“priority targets for attack”.134

134 RBN – Georgia Cyberwarfare – Status and Attribution. Russia Business Network Exploit blog.
rbnexploit.blogspot.com/2008_08_01_archive.html (last accessed: 30 Oct 2008)

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Annex III: Chronology of Cyber Attacks against Georgia
Attack on the Georgian President website in July

On July 19, the website of Georgian President Mikheil Saakashvili


(www.president.gov.ge) became unavailable for more than 24 hours due to a multi-
pronged distributed denial of service (DDoS) attack. The Shadowserver Foundation
observed at least one web-based command and control (C&C) server taking aim at the
website, hitting it with a variety of simultaneous attacks. The C&C server instructed its
bots to attack the website with TCP, ICMP, and HTTP floods. The website remained
down for more than 24 hours and was later moved to a server in the US.

Commands picked up by Shadowserver135:

flood http www.president.gov.ge


flood tcp www.president.gov.ge
flood icmp www.president.gov.ge

Shadowserver also observed that HTTP-based botnet C&C server was a MachBot
controller, which is a tool that is frequently used by Russian bot herders. The domain
involved with this C&C server has seemingly bogus registration information but ties back
to Russia. This server had recently come online in the past few weeks and had not issued
any other attacks. All attacks observed were directed right at www.president.gov.ge.136

Shortly after the blog the C&C server that was used to issue these attacks was taken
offline.

The attacks originally started to take place several weeks before the actual “intervention”
with Georgian President’s web site coming under DDoS attack executed by Russian
hackers in July; followed by active discussions across the Russian web on whether or not
DDoS attacks and web site defacements should in fact be taking place, because it would
inevitably come as a handy tool to be used against Russia by Western or Pro-Western
journalists. 137

Georgian Cyber Attacks in August 2008

Shadowserver did not witness any other servers attacking Georgian websites from July
20 (when the blog was posted) until August 8, 2008. 138 A number of other sources also

135 Adair, supra note 12.


136 Id.
137 Danchev, supra note 32.

138 Adair, supra note 134.

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confirm that the peak of DDoS attack and the actual defacements started taking place as
of August 8. 139

In the wake of the Russian-Georgian conflict (August 8), a week worth of speculations
around Russian Internet forums materialized into a coordinated cyber attack against
Georgia’s Internet infrastructure. The attacks have already managed to compromise
several government web sites, with continuing DDoS attacks against numerous other
Georgian government sites, prompting the government to switch to hosting locations to
the U.S, with Georgia’s Ministry of Foreign Affairs undertaking a desperate step in order
to disseminate real-time information by moving to a Blogspot account. 140

The date appears to coincide with military movement that has since escalated into
fighting between the two countries. Since August 8 Shadowserver witnessed multiple
C&C servers attacking websites that are Georgian or sympathetic to the country.141

Several Georgian state computer servers came under external control since shortly
before Russia’s armed intervention into the state commenced on August 8, leaving its
online presence in disarray. While the official website of Mikheil Saakashvili, the
Georgian President, has become available again, the central government site, as well as
the homepages for the Ministry of Foreign Affairs and Ministry of Defence , remain
down. Some commercial websites have also been hijacked. 142

In a statement released via a replacement website built on Google’s blog-hosting service,


the Georgian Ministry of Foreign Affairs said on August 11, “A cyber warfare campaign
by Russia is seriously disrupting many Georgian websites, including that of the Ministry
of Foreign Affairs.” 143

After defacing Mikheil Saakashvili’s web site and integrating a slideshow portraying
Saakashvili as Hitler next to coming up with identical images of both Saakashvili and
Hitler’s public appearances, the site remains under a sustained DDoS attack (as of
August 11). 144

Nino Doijashvili (a Georgian expatriate), chief executive of Atlanta-based hosting


company Tulip Systems Inc. offered the Georgian government help and transferred
president.gov.ge and rustavi2.com, the Web site of a prominent Georgian TV station, to
her company’s servers on Saturday, August 9. 145

139 Danchev, supra note 29.


140 Id.
141 Adair, supra note 32.

142 Danchev, supra note 29.

143 ‘Cyber Attacks Disable Georgian Websites’, Georgian Ministry of Foreign Affairs, Aug 11, 2008, available at:

georgiamfa.blogspot.com/2008/08/cyber-attacks-disable-georgian-websites.html (last accessed: 27 Aug 2008).


144 Danchev, supra note 29.

145Danchev, supra note 29.

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On early morning of August 9, TBC, the largest commercial bank of Georgia came under
attack.146

Dancho Danchev147 of ZDNet monitored (presumably from Aug 9 to 10, 2008, as he


referred to the weekend prior to posting his conclusions of Aug 11) the activities carried
out in the course of the attacks and presented the following analysis, concluding the
cyber attack was a coordinated one.148 He made the following observations regarding the
forms of attack employed in the timeframe:

Static lists of targets were distributed in order to eliminate centralised


coordination of the attack.149 A list of Georgian government web sites150 was actively
distributed across Russian web forums as targets to be attacked.151 One such forum was
stopgeorgia.ru (also redirect from stopgeorgia.info). 152

DoS tools were provided, available for download from specific sites (Danchev
understandably does not reference the sites, but does provide a screenshot) 153 .
Instructions on how to ping flood Georgian government web sites were also
distributed.154

Lists of Georgian sites vulnerable to defacement attack were published.


Russian hackers started distributing lists of Georgian sites vulnerable to remote SQL
injections, allowing them to automatically deface them.155 As pointed out by the Project
Grey Goose report, detection of a targeted SQL Injection attack designed to pilfer data or
compromise the underlying system during a rigorous, traditional DDoS would be

146 CERT-EE, supra note 26.


147 Dancho Danchev is an independent security consultant and cyber threats analyst, with extensive experience in open
source intelligence gathering, malware and E-crime incident response, and a security blogger since 2007, and
maintains a popular security blog sharing real-time threats intelligence data with the rest of the community on a daily
basis
148 Danchev, supra note 29.

149 Id.

150 www.nbg.gov.ge

www.mof.ge
www.nsc.gov.ge
www.mod.gov.ge
www.constcourt.gov.ge
www.government.gov.ge
www.mfa.gov.ge
www.police.ge
151 Danchev, supra note 29.

152 Id.

153 Id.

154 Id.

155 Id.

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extremely difficult to detect, and the discovery and exploitation of these application level
vulnerabilities shows both technical sophistication and planning, organization, targeted
reconnaissance, and evolution of attacks.156

Abuse of public lists of email addresses of Georgian politicians for


spamming and targeted attacks. The list was originally created by a lobbying
organisation; during the attacks, it was circulated “in an attempt to convince Russian
hackers of the potential for abusing it in spamming attacks and targeted attacks
presumably serving malware through live exploit URLs”. 157

Attacking customary communication forums of the IT community: destroy


the adversary’s ability to communicate using the usual channels. One of Georgia’s most
popular hacking forums was under a long-lasting DDoS attack on behalf of Russian
hackers who communicated the intent to ensure that local hacktivists could be reached.

On August 10, Shadowserver reported new attacks against .ge sites. (www.parliament.ge
and president.gov.ge) were hit with http floods. In this case, the IP address of C&C
server involved was 79.135.167.22 which is located in Turkey.158

This time, the attacks were not limited to just government websites. Shadowserver
reported at least six different C&C servers attacking various websites that were not
government sites. In some cases the servers were attacking the same websites. The
following websites have come under attack:

www.president.gov.ge
www.parliament.ge
apsny.ge
news.ge
tbilisiweb.info
newsgeorgia.ru
os-inform.com
www.kasparov.ru
hacking.ge
mk.ru
newstula.info
skandaly.ru159

156 Project Grey Goose, supra note 42


157 Danchev, supra note 29.
158 Adair, supra note 12.

159 Adair, supra note 32.

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By Aug 11, Civil.ge had come under DDoS attack, and — just like Georgia’s Ministry of
Foreign Affairs — it switched to a Blogger account in case the site remained
unavailable.160

As of August 13, Shadowserver reported large-scale ICMP traffic. Attacks were directed
against Georgian governmental websites from numerous Russian computers from
several different ISPs throughout the country, covering both dialup and broadband
users.161 Russian blogs, forums, and websites are spreading a Microsoft Windows batch
script that is designed to attack Georgian websites. The effect of it is continuous ICMP
traffic via the ‘ping’ command to several Georgian websites.162 Shadowserver also posted
an example of the script163 being posted:

@echo off
@echo Call this file (MSK) 18:00, 20:00
@echo Thanks for support of South Ossetia! Please, transfer this file to
the friends!
pause
<removed> newsgeorgia.ru <removed>
<removed> apsny.ge <removed>
<removed> nukri.org <removed>
<removed> opentext.org.ge <removed>
<removed> messenger.com.ge <removed>
<removed> president.gov.ge <removed>
<removed> government.gov.ge <removed>
<removed> parliament.ge <removed>
<removed> nsc.gov.ge <removed>
<removed> constcourt.gov.ge <removed>
<removed> supremecourt.ge <removed>
<removed> cec.gov.ge <removed>
<removed> nbg.gov.ge <removed>
<removed> nplg.gov.ge <removed>
<removed> police.ge <removed>
<removed> mod.gov.ge <removed>
<removed> mes.gov.ge <removed>
<removed> mfa.gov.ge <removed>
<removed> iberiapac.ge <removed>
<removed> mof.ge <removed>

160 Danchev, supra note 29.


161 Adair, supra note 36.
162 Id.

163 Actual commands and parameters of the script have been removed to avoid being a distribution point for it.

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According to Arbor Networks, a set of coordinated attacks followed the initial flood.
These attacks were mostly TCP SYN floods with one TCP RST flood in the mix. No ICMP
or UDP floods were detected; the attacks were all globally sourced, suggesting a botnet
(or multiple botnets) were behind them.164

Number of attacks Destination


5 213.131.44.138
3 213.157.196.25
10 213.157.198.33
1 www.gazeti.ge

Raw statistics of the attack traffic:


− Average peak bits per second per attack 211.66 Mbps
− Largest attack, peak bits per second 814.33 Mbps
− Average attack duration 2 hours 15 minutes
− Longest attack duration 6 hour165

The last large cyber attack against the Georgian websites was launched on August 27.
After August 27, no serious attacks against Georgian cyberspace have been taken place,
but nevertheless there have been occurrences of minor cyber attacks that are
indistinguishable from regular traffic and can be attributed to regular civilians.

The main target of the August 27 attacks was the Georgian Ministry of Foreign Affairs
that together with other sites came under a DDoS attack at approximately 16:18 (GMT
+3). As the main target of the attacks was the Georgian Ministry of Foreign Affairs, the
attacks mainly consisted of HTTP queries to the mfa.gov.ge website. These requests were
generated to overload the web server in a way where every single request would need
significant CPU time.

The cyber attacks also managed to disrupt services for other Georgian websites. This was
so because of the load on the servers by these (HTTP) requests that resulted in rendering
the services for the attacked websites slow and unresponsive.

The attacks started to wind down on August 28, due to the reason that most of the
attackers were successfully blocked.166

164Nazario, supra note 33.


165Id.
166 Danchev, D. DDoS Attack Graphs from Russia vs Georgia's Cyberattacks. 15 Oct 2008. Available at:
ddanchev.blogspot.com/2008/10/ddos-attack-graphs-from-russia-vs.html (last accessed 25 Aug 2008).

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Annex IV: Estonian Information Society in Facts

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Annex V: Georgian Information Society in Facts

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Annex VI: Comparison of Recent Cyber Conflicts

Estonia 2007 Lithuania 2008 Georgia 2008

Background Political events: Political events: On Georgian surprise


relocating a Soviet June 17 2008, attack against
war memorial. Lithuanian separatist forces in
Parliament passed a South Ossetia
law prohibiting the resulted in Russian
public display of aggression. Cyber
symbols dating from attacks against
the Soviet Union era, Georgia occurred
as well as playing of simultaneously with
the Soviet Union physical attacks.
anthem.

Duration July 19-20,


27 April - 18 May, 28 June – 30 June,
August 7-27,
2007 2008
2008

Targets Political, Services Political and private Political


(On-line banking, sites (all hosted on (Governmental and
ISPs, Online media); the same ISP). presidental sites),
Personal and random Services (Online
targets. banking, Online
media, ISPs) .

Damages Unestimated Unestimated Unestimated

Attack types DoS and DDoS, Defacement. DoS and DDoS,


defacement, defacement,
e-mail and comment TCP SYN floods,
spam,
TCP RST flood,
Some targeted hacks
Higher intensity
using exploits/SQL
attacks compared to
injections.
Estonia 2007.

Attackers Unknown. Attacks Unknown. Attacks Unknown. Attacks


globally sourced. conducted via proxy globally sourced.
Using (paid) botnets servers. Using (paid) botnets
and random internet Controversial and random internet
users. Instructions information about users. Instructions
widely available on the location of the widely available on
the Internet. servers – some the Internet.
sources indicate that
attacks originated

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from the servers
located outside
Lithuania, while
others point that the
servers were located
in the east territories
of Lithuania.

Defensive and Cooperation (CERT- Cooperation (CERT- Cooperation


organisational EE + network of LT, Academic and (Georgian University
actions specialists, Research Network CERT, CERT-EE,
international CERT). CERT-PL, CERT-
cooperation). FR).
Political coverage.
Political coverage. Political coverage.
Media coverage.
Media coverage. Media coverage.
Technical
Law enforcement countermeasures. Technical
actions. countermeasures.
Police investigation.
Technical
countermeasures.

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